If the Victim Fails to Appear- Will My Case Be Dismissed?

By
Prain Law, PLLC
|June 25, 2014

If the Victim Fails to Appear - Defense Attorney Brian J. Prain Discusses if Your Case Will be Dismissed...

What if the victim fails to appear?- can be top-of-mind thinking and an engulfing question when you find yourself
faced with an Assault charge
of any kind. "If the victim fails to appear, will my case be dismissed?"
The bottom-line answer is "perhaps". But this can be a more
involved issue than you may think.

When you find yourself facing a Domestic Violence or other Assault charge,
and if the victim fails to appear, it is not always the result of being
an intimidated or guilt-ridden female any more... the reasons can be widely
varied. Domestic Violence and Assault Defense Attorney,
Brian J. Prain, discusses the elements of "how"and "if" your case
will be dismissed.

Question #1 If the victim fails to appear in court - what type of hearing
have they missed? Often, the complainant will be Subpoenaed by the Prosecuting
Attorney to appear at a less significant hearing, for example, a Pretrial
Conference. If the victim fails to appear, in this instance, they are
primarily missing their opportunity to consult with the Prosecutor to
see how they would like to see the case resolved under the
Michigan Crime Victim's Rights, Act. In this case,if the victim fails to appear at a Pretrial Conference, it is highly unlikely that your case will be
dismissed. In fact, hardly any cases are ever dismissed under this circumstance.
And if any Defense Attorney tells you otherwise, they should be viewed
with caution.

Question #2 How does it effect my case if the victim fails to appear on the scheduled
Trial Date? Now we are looking at a potentially
different scenario. If the victim fails to appear, despite a Subpoena summoning
them, many Judges will readily grant the Defense Attorney's motion
to dismiss the charges against you. However, if the victim fails to appear
it is also not
uncommon for the Prosecutor to ask for an adjournment (postponement) to give them
time to locate the victim, and granting them the opportunity to still
try the case, at a later date.

Prosecutor's have also been known to state, under their own initiative,
that the victim has failed to appear and they are unable to proceed with
the case. In this case, the Court will likely dismiss the Michigan Assault
charges against you
Without Prejudice - meaning, the prosecution could bring charges again at a later date -
if they are so inclined.

Question #3 What if the victim fails to appear - and they are deemed by
the court to be
legally unavailable? In certain Domestic Violence cases, if the victim fails to appear, and
the Prosecutor has filed aNotice of Intentunder MCL 768.27c, the Supreme Court says theymay be able to continue the prosecutors case against you, without benefit
of the victim's testimony, even though this is in violation of the
defendant's 6th Amendment Right to confront his accuser. In this case,
if the victim fails to appear, and the strict legal requirements governing the
Notice of Intent under MCL 768.27c have been met, a bad Judge who doesn't know the law
may allow the Trial to continue.

Is your Criminal Defense Counsel ready to meet these legal challenges?
Call Brian J. Prain of
Prain Law, PLLC directly at
(248) 731-4543. More comfortable with confidential email? Send us a message online by
filling out our
Custom Contact Form, below. Each additional minute you wait, the strength of your defense
can diminish.

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